Deciding Who Keeps the House in a Divorce

Weber Gallagher Simpson Stapleton Fires & Newby LLP

Weber Gallagher Simpson Stapleton Fires & Newby LLP

One of the most common questions I am asked when a party files for a divorce is, “Who keeps the house?”

There are often many considerations when answering this question. Foremost the spouse who wants to keep the house should know whether they are able to afford the house post-divorce. In determining whether a client should retain the marital residence, a detailed analysis of the income and expenses should be done so the client will have an understanding how much the house will cost each month.

A divorce client should consider not only the monthly costs but the more expensive capital improvement costs over the next five years. For instance, will the house need a new hot water heater, roof, deck or other costly improvements? Budgeting for the larger ticket items might persuade a spouse to sell the property if they have little income coming in post-divorce. A client should also consider whether there is a mortgage or a home equity loan including the monthly payments, whether the interest rate is fixed or adjusted and whether the spouse will need to refinance post-divorce.

Most often clients are emotionally persuaded to keep the house post-divorce so the children may remain in the same school district. Although this is certainly an important consideration, whether there are minor children should not be the only consideration in deciding whether to retain the hose post-divorce.

Further, if the marital residence is the largest asset in the marital estate, the retaining spouse needs to consider how they will buy the other spouse’s equity so the other party may be paid. This may lead to higher monthly expenses including larger monthly payments which might not be feasible. Before deciding whether to retain the marital residence, review the monthly expenses and consider all options so that you may make an informed decision and hopefully not a costly decision.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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